that all 340 people serving 25 years to life for
petty theft have a strong claim that they're being held
But, he said, it leaves open the question:
"What other offenses are so trivial that they, too, can't be the
basis for imposing three strikes?"
And the actual impact of the rulings remains
Some predict that the decisions will influence
future applications of the law and open the door to hundreds of claims
of cruel and unusual punishment. In Kern County, a specially hired
attorney is sifting through several hundred old cases in search of
those warranting appeal. Others have taken a wait-and-see stance in
light of Attorney General Bill Lockyer's pending petition urging the
U.S. Supreme Court to review one of the rulings.
Under California's three strikes law, a
defendant faces 25 years to life in prison (and must serve the
minimum) after conviction of three felonies that qualify as
"strikes." The first two strikes must be serious or violent
felonies. The controversial portion of the law, however, centers
around the third, or "triggering," strike, which can be any
felony. Even a "wobbler" offense that is charged and sentenced as
a felony would qualify as a third strike.
Legislation and an initiative
Legislation proposed recently by Assemblymember
Jackie Goldberg (D-Los Angeles) would require that the third strike be
a serious or violent felony as well. And an initiative launched by a
Garden Grove-based group, Citizens Against Violent Crime (CAVC), would
require all strikes to be violent felonies.
Proponents of the current law, however, argue
that the discretion afforded prosecutors and judges in charging and
sentencing under the law already provides a safeguard against unjust
Some 7,000 convicted habitual offenders have been
sentenced to at least 25 years to life under California's three
strikes law, according to state Department of Corrections statistics.
Of those, more than half received their sentence for a nonviolent
Last November, however, a split Ninth Circuit
Court of Appeals panel ruled for the first time that the application
of the law in one case was unconstitutional.
In 1995, Leandro Andrade was charged with two
counts of petty theft with a prior for shoplifting videotapes twice
from Kmart stores. His charges were enhanced to felonies, then flagged
as third and fourth strikes. With a prior nonviolent criminal record
that included three residential burglaries, Andrade was sentenced to
50 years to life in prison.
"Our decision does not invalidate
California's three strikes law generally," Circuit Judge Richard
A. Paez wrote in Andrade v. Attorney General of the State of
California. "Rather, we conclude that it is unconstitutional only as
applied to Andrade because it imposes a sentence grossly
disproportionate to his crimes."
Paez also noted that Andrade's sentence was
"substantially more severe" than the sentences for most violent
crimes in California. And he concluded that Andrade could not have
received such a sentence in any other state, with the possible
exception of Louisiana.
In a partially dissenting opinion, Circuit Judge
Joseph T. Sneed argued, however, that California's citizens and
legislators had mandated such a sentence.
"Our deference should be at its apex," Sneed
wrote. "We have before us the clearest indication possible that
severe, mandatory sentences for recidivist offenders is the expressed
penal philosophy of the citizens of California. The initiative process
permits the electorate to speak for itself, and its voice should be
heard, not ignored."
In January, the attorney general filed his
petition seeking a U.S. Supreme Court review of the decision. The
petition suggested that, if left unchecked, the decision would "open
the floodgates of litigation to unprincipled federal review of
thousands of sentences."
Such a sentence for petty theft with a prior does
not constitute cruel and unusual punishment, the petition asserts.
"Surely, the California legislature is entitled to conclude that a
person who demonstrates a willingness to commit serious or violent
felonies on more than one occasion, and who subsequently demonstrates
a continued unwillingness to be law-abiding, no matter how trivial the
offense, poses a significant danger to society," the petition
"Nothing in the Constitution requires society
to wait for another person to be victimized by another serious or
violent crime before isolating such a defendant who has demonstrated a
propensity for serious or violent crime, for a substantial period of
The U.S. Supreme Court is not expected to act on
the petition before April.
And the issue no longer centers around one case
alone. In February, another Ninth Circuit Court of Appeals panel -
this one unanimous - struck down two more three strikes sentences as
unconstitutional. This time, however, the backgrounds of the convicted
shoplifters, Richard Brown and Earnest Bray Jr., included violent
"If we attempt to distinguish Andrade solely on
the basis that Bray and Brown have prior felonies that may have been
violent, as opposed to serious, then we would be punishing Bray and
Brown as nonviolent lawbreakers who were violent in the past," wrote
Circuit Judge Marsha S. Berzon.
Bray had four prior robbery convictions,
according to court records. And
Brown had five serious or violent felony convictions, including
robbery and assault with a deadly weapon.
Nor did Berzon accept the state's justification
that a few hundred other recidivists have received similar sentences
for petty theft. Eighth Amend-ment protections are not reserved only
for "aberrant situations," she noted.
"If, for example, the state decided to chop off
the hands of everyone convicted of speeding, the likely conclusion
that such a sentence is cruel and unusual would not change because the
state inflicted it on many people," she wrote.
By mid-February, the attorney general was still
deciding what further action will be taken in the Brown v. Mayle case,
said spokeswoman Hallye Jordan.
Berkeley law professor Franklin Zimring suggests
that the Andrade and Brown cases were particularly vulnerable to
judicial scrutiny because they trigger the "most absurd corner" of
the three strikes law. Zimring, the co-author of a recent book on
California's three strikes law, points to the "compound and
perverse interaction" of the three strikes law and an older
California provision that upgrades petty theft to a felony when the
accused has a prior property felony conviction.
"From the standpoint of protecting the
community from danger, the petty theft with a prior rule is perverse
because it only upgrades the severity of prior property crimes
convictions," he said.
Under current law, he points out, a twice
previously convicted murderer with no prior property offenses could
only get six months in jail for stealing videotapes, while a twice
convicted burglar would face a 25-years-to-life sentence for stealing
the same tapes.
Little room for scrutiny
"The Supreme Court of the United States has
left very little room for Eighth Amendment scrutiny by federal
courts," he said. "What this case will decide is whether it's
left them any room at all because you couldn't make up a more
Just how the latest ruling will affect past and
future defendants in three strikes cases remains open to debate.
Secretary of State Bill Jones, who authored the
three strikes law in 1994, insists it "threatens to put more repeat
murderers, robbers, rapists and child molesters back in our
He points to California's 41 percent drop in
crime since the law's enactment - a greater drop than in any other
state and more than double the reduction in the rest of the country.
"There is ample discretion in the law for both judges and
prosecutors to reduce a sentence under the three strikes law when it
is in the furtherance of justice to do so," he said.
Obstacles to reversal
Some point to procedural obstacles in seeking
reversal of three strikes sentences in certain cases. Others note that
state court judges are not bound by the rulings. And some suggest that
the impact will likely vary by county because of a wide variation in
the law's application.
Kern County, for example, which is known for its wide use of the three
strikes law. In Kern, Public Defender Mark Arnold is preparing a broad
challenge. "The word has gotten out that our office is actively
pursuing this," he said. "We will challenge the cases that we
think merit the strongest chance of being reversed, and there are many
in this county."
For the most part, Arnold does not see any
insurmountable procedural hurdles in seeking reversal of old three
strikes sentences in worthy cases. "It really depends on the
receptiveness of the courts to the morality of the argument," he
said. "If the courts want to, they'll find a way."
And Arnold believes the rulings could influence
state court judges in their handling of pending cases. "I don't
see how the courts can ignore the federal court that directly reviews
their opinions," he said.
Gary Nichols, the writs and appeals section
supervisor in the San Diego Public Defender's Office, has a
different take. Short of a U.S. Supreme Court decision upholding the
Ninth Circuit, Nichols sees the rulings as having little practical
He sees numerous procedural problems to pursuing
cruel and unusual punishment claims in old cases and doesn't want to
raise anyone's hopes. So, he said, he is waiting, with very little
optimism, to see what the high court will do.
Still, Nichols views the rulings as important in
another way. "The Ninth Circuit is kind of acting as our conscience
here," he said. "This is putting the spotlight on just how absurd
we have been since 1994. That's the biggest impact. It has
invigorated the debate and wisdom of the social policy."
Many say that judges have already become less
likely to count non-serious, nonviolent offenses as third strikes. A
key 1996 California Supreme Court decision - People v. Superior
Court (Romero) - gave judges the discretion to overlook a
defendant's strikes. And numerous defendants have been resentenced
as a result.
Nichols, who handled Romero's appeal, recalls
bringing defendants back to court "by the busload" for
re-sentencing. "We filed hundreds of those things," he said,
"and a lot of guys got strikes stricken."
Some prosecutors, too, now steer away from
tagging non-serious, nonviolent offenses as third strikes. Los
Angeles, for example, has seen a marked decrease in three strikes
cases since District Attorney Steve Cooley instigated a policy
presuming that a 25-years-to-life sentence will not be sought when the
third strike is a non-serious, nonviolent crime.
Alex Ricciardulli, a Los Angeles deputy public
defender who specializes in appeals and three strikes cases, says he
finds the Brown ruling "very encouraging" because it "increases
the pool of potential defendants that can argue cruel and unusual
For now, he said, Los Angeles public defenders
are simply reviewing a steady trickle of old three strikes cases
referred to them for possible appeal. But they will likely take a more
systematic approach later, he said. First, they, too, are waiting to
see how the U.S. Supreme Court will handle the Andrade decision.
Too early to tell
Lawrence Brown, executive director of the
California District Attorneys Association, says it is simply too soon
to speculate on the rulings' impact. He believes that the Andrade
decision "misconstrues the standard for cruel and unusual
punishment." And he remains hopeful that it will be reversed.
"It's not certain whether these rulings will
ultimately withstand the test of time," he said. "It's not
exactly a secret that the Ninth Circuit decisions often are not upheld
by the U.S. Supreme Court."
Zimring points out that the constitutional
decision is "one small corner" of the three strikes law. "It, in
no way, is a substitute for an initiative or legislative review," he
said. "But what it is doing is casting a shadow on the rationality
of the three strikes approach."
full text of the Ninth Circuit Court of Appeals opinions, see www.ca9.uscourts.gov.